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Opinion ‘Totem pole hearsay’

The Tlingit Chief Johnson totem pole in Ketchikan, Alaska. (Mira/Alamy)

An unusual legal term I just ran across, though more common in Massachusetts court decisions — “totem pole hearsay.” It means hearsay-within-hearsay, not just a witness saying “Joe told me that he saw defendant injuring plaintiff” (that would generally be just plain hearsay) but a witness saying “Mary told me that Joe told her that he saw defendant injuring plaintiff.” Because it’s double hearsay (or, in some situations, perhaps even more than double), it seems especially untrustworthy and subject to broken-telephone effects. I take it the “totem pole” refers to the stacking of hearsay on top of more hearsay.

Of course, even one-level hearsay is inadmissible, unless one of the hearsay exceptions applies. Totem pole hearsay is thus in principle equally inadmissible. But totem pole hearsay can also often be seen as especially unworthy of credibility even when it’s technically admissible.

UPDATE: I originally gave “Joe told me that defendant admitted to injuring plaintiff” as an example of plain hearsay, because I’m used to statements by opposing parties being treated as non-hearsay (so that “defendant told me that he injured plaintiff” wouldn’t be hearsay at all, if introduced by plaintiff). That’s the federal rule; but as some commenters pointed out, some states treat that as hearsay, albeit admissible hearsay. I changed this to “Joe told me that he saw defendant injuring plaintiff” to eliminate that complication.